Citation Nr: 0420153
Decision Date: 07/26/04 Archive Date: 08/04/04
DOCKET NO. 02-20 976 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for hepatitis C, with
cirrhosis of the liver.
2. Entitlement to an initial compensable evaluation for
residuals of a left foot injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeffrey J. Schueler, Counsel
INTRODUCTION
The appellant had active service from September 1965 to
October 1968.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi. In that determination, the RO denied the
appellant's claim of service connection for hepatitis C with
cirrhosis of the liver, and granted the claim of service
connection for residuals of a left foot injury at a
noncompensable evaluation. The appellant disagreed with the
denial of service connection for hepatitis C and the
evaluation of the residuals of a foot injury. This appeal
ensued.
In February 2004, the appellant testified at a hearing before
the undersigned Acting Veterans Law Judge designated by the
Chairman of the Board to conduct the hearing and render a
decision in this case pursuant to 38 U.S.C.A. § 7107(c) (West
2002). A transcript of the hearing is of record.
For the reasons discussed below, the claim of service
connection for hepatitis C must be REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, D.C. VA will
notify the appellant if further action is required on his
part.
FINDING OF FACT
Residuals of a left foot injury are manifested by less than
moderate impairment and by functional loss due to pain on
use.
CONCLUSION OF LAW
The criteria for a 10 percent evaluation for residuals of a
left foot injury are met. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic
Code 5284 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), made
significant changes to the VA's duty to notify and to assist
claimants for VA benefits. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102,
3.156, 3.159, and 3.326 (2003).
The VCAA prescribed that the amendments to 38 U.S.C. § 5107
are effective retroactively to claims filed and pending
before the date of enactment. 38 U.S.C.A. § 5107 note
(Effective and Applicability Provisions) (West 2002). The
United States Court of Appeals for the Federal Circuit has
ruled that the retroactive effective date provision of the
Act applies only to the amendments to 38 U.S.C.A. § 5107.
See Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002);
Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). However,
the VA regulations promulgated to implement the Act provide
for the retroactive effect of the regulations, except as
specified. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). Whereas
VA regulations are binding on the Board, 38 C.F.R. §
20.101(a) (2003), the Board in this decision will apply the
regulations implementing the VCAA as they pertain to the
claim at issue.
The appellant's claim was received in December 2001, and
there is no issue as to provision of a form or instructions
for applying for the benefit. 38 U.S.C.A. § 5102 (West
2002); 38 C.F.R. §§ 3.150, 3.159(b)(2) (2003). The United
States Court of Appeals for Veteran Claims' (Court's)
decision in Pelegrini v. Principi (Pelegrini II), No. 01-944,
U.S. Vet. App. (June 24, 2004) (granting motion for
reconsideration of and vacating Pelegrini v. Principi
(Pelegrini I), 17 Vet. App. 412 (2004)), held, in part, that
a VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for
VA benefits. In this case, the initial AOJ decision was made
after November 9, 2000, the date the VCAA was enacted.
VA must provide the claimant and the claimant's
representative, if any, notice of required information and
evidence not previously provided that is necessary to
substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2003). The VCAA notice must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant' s possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s )."
Pelegrini II, No. 01-944, U.S. Vet. App., at 10; see also
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
After the appellant filed his claim in December 2001, but
before the RO initially granted service connection and
assigned the noncompensable evaluation in July 2002, the RO
sent the appellant a January 2002 letter notifying him of the
VCAA, the assistance VA would provide, and his obligations to
notify VA of pertinent information or evidence. Upon
rendering the initial rating decision in this case, the RO
sent the appellant a July 2002 letter notifying him of the
action with a copy of the rating decision discussing the
reasons a noncompensable evaluation was assigned. Upon his
disagreement, the RO sent the appellant a November 2002
statement of the case informing him of the evidence
considered, the legal criteria applicable, and the analysis
of the claim, including identification of elements for which
evidence was deficient. By letters in 2003 and 2004, the RO
told the appellant of the dates of a scheduled hearing; a
transcript of a hearing held in January 2004 is of record.
VA has informed the appellant of the information and evidence
necessary to substantiate the claim. As early as January
2002, the RO notified him of the need for information or
evidence concerning the claim. In response, the appellant
identified sources of treatment, and records from these
sources are associated with the claims file. The appellant
has been informed of the information and evidence not of
record that is necessary to substantiate the claim, of the
information and evidence he was expected to provide, of the
information and evidence that VA would seek to obtain, and of
the need to provide any information and evidence in his
possession pertinent to the claim. See Pelegrini II, No. 01-
944, U.S. Vet. App., at 10. There is no indication that
additional notification of the types of evidence needed to
substantiate the claim, or of VA's or the appellant's
responsibilities with respect to the evidence, is required.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Even if the initial notice in this case did not comply with
Pelegrini II, any notice defect in this case was harmless
error. The content of the aggregated notices, including the
notice letters subsequently issued, fully complied with the
requirements of 38 U.S.C.A. § 5103(a) (West 2002) and
38 C.F.R. § 3.159(b) (2003). After VA provided this notice,
the appellant communicated on multiple occasions with VA,
without informing it of pertinent evidence. The claimant has
been provided with every opportunity to submit evidence and
argument in support of his claim, and to respond to VA
notices. Therefore, not withstanding Pelegrini II, to decide
the appeal would not be prejudicial error to the claimant.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2003). Such assistance includes making every reasonable
effort to obtain relevant records (including private and
service medical records and those possessed by VA and other
Federal agencies) that the claimant adequately identifies to
the Secretary and authorizes the Secretary to obtain.
38 U.S.C.A. § 5103A(b) and (c) (West 2002); 38 C.F.R.
§ 3.159(c)(1-3) (2003). Assistance shall include providing a
medical examination or obtaining a medical opinion when such
an examination or opinion is necessary to make a decision on
the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4) (2003). The evidence of record includes the
service medical records, VA clinical, treatment, and hospital
records, private medical records, lay statements, submissions
from the appellant, and documentation of efforts to obtain
evidence from health care sources identified by the
appellant. In November 2002, the appellant underwent a VA
examination to assess the severity of his service-connected
left foot injury. The appellant has not identified any
additional VA or private treatment records with regard to the
claim. There is no reasonable possibility further assistance
might substantiate the claim. See 38 U.S.C.A. § 5103A(2)
(West 2002); 38 C.F.R. § 3.159(d) (2003).
On appellate review, there are no areas in which further
development is needed.
II. Analysis
In July 1967, the appellant suffered a chip fracture of the
left talus. He was in a cast for approximately three weeks.
The separation examination in September 1968 revealed a
normal feet clinical evaluation and no specific reference to
any residuals of the injury. The RO, by its July 2002 rating
decision, established service connection for residuals of a
left foot injury. It assigned a noncompensable evaluation,
and the appellant seeks a higher evaluation.
Disability evaluations are determined by the application of a
schedule of ratings based on average impairment in earning
capacity. 38 U.S.C.A. § 1155 (West 2002). Requests for
increased disability ratings require consideration of the
medical evidence of record compared to the criteria in the VA
Schedule for Rating Disabilities. 38 C.F.R., Part 4 (2003).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2003);
Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1 (2003);
Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim placed
in appellate status by disagreement with the initial rating
award and not yet ultimately resolved is an original claim as
opposed to a new claim for increase. Fenderson v. West, 12
Vet. App. 119, 126 (1999). In such cases, separate ratings
may be assigned for separate periods based on the facts
found, a practice known as "staged" ratings.
Private clinical records in December 1999 noted recent
swelling of the left ankle, and VA clinical records in
November 2000 indicated ankle edema. VA bones examination in
November 2002 indicated the appellant complained of pain on
ambulation across the instep of the left foot. The examiner
noted the appellant walked into the examining room with a
slight limp giving to the left foot. Examination revealed
tenderness to manipulation of the metacarpal-carpal junction
by a portion of the forefoot. Tenderness was also there for
direct palpation of the dorsal aspect of the foot. There was
no deformity of the foot, nor was there a decrease in the
normal arch as compared to that of the right foot. Extension
and flexion of the toes, ankle activity of dorsal flexion and
plantar flexion, and medial and lateral stability were all
within normal limits. There was no evidence of unusual
callus formation secondary to disproportionate weight
bearing. The impression was residuals of trauma to the left
foot. An x-ray of the left foot showed a tiny ossific
density just lateral to the cuboid bone, probably in a
ligament or tendon, which was very unlikely a fracture
fragment. The study was otherwise unremarkable.
The disability is rated pursuant to the criteria of
Diagnostic Code 5284 for other foot injuries. A 10 percent
evaluation is assigned for moderate impairment. A 20 percent
evaluation may be assigned for moderately severe impairment
and a 30 percent evaluation for severe impairment. With
actual loss of use of the foot, the disability could be rated
40 percent disabling. 38 C.F.R. § 4.71a (2002).
The November 2002 VA examination revealed no deformity of the
foot, no callus formation, and no decrease in the normal
arch. Range of motion, as measured by extension and flexion
of the toes, ankle activity of dorsal flexion and plantar
flexion, and medial and lateral stability, were all within
normal limits. The examiner reported the appellant's
complaints of pain on ambulation and tenderness
on palpation; similarly, the earlier private clinical records
in December 1999 noted no more than recent swelling of the
left ankle, and VA clinical records in November 2000
indicated at most ankle edema. However, the x-ray of the
left foot in November 2002 was unremarkable except for a tiny
ossific density just lateral to the cuboid bone, probably in
a ligament or tendon, which was very unlikely a fracture
fragment. These findings reveal no clinical manifestation
except a tiny ossific density, with complaints of pain and
tenderness, and without impairment of motion or weight
bearing on the left foot. Therefore, the disability is not
manifested by moderate, moderately severe, or severe
impairment, and does not warrant a compensable evaluation
under the criteria of Diagnostic Code 5284.
VA's Schedule for Rating Disabilities also lists other
diagnostic criteria that might be alternatively applicable,
depending on the evidence. In this case, however, there is
no indication of flatfoot, bilateral weak foot, claw foot,
anterior metatarsalgia, unilateral hallux valgus, severe
unilateral hallux rigidus, hammer toe, or malunion or
nonunion of the tarsal or metatarsal bones, that would
warrant consideration of Diagnostic Codes 5276, 5277, 5278,
5279, 5280, 5281, 5282, or 5283, respectively. See 38 C.F.R.
§ 4.71a (2003).
That does not, however, end the inquiry. An additional
consideration is whether there is functional loss and
objective evidence of pain on use resulting from the
disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2003); DeLuca
v. Brown, 8 Vet. App. 202, 204-07 (1995). Where
symptomatology demonstrates such considerations, a higher
schedular evaluation may be warranted. Furthermore, it is
also the intention of the rating schedule to recognize
actually painful joints, due to healed injury, as entitled to
at least the minimum compensable rating for the joint.
38 C.F.R. § 4.59.
The minimum compensable rating for any foot disorder is 10
percent. The Board concludes, resolving any reasonable doubt
in the veteran's favor, that the criteria for a 10 percent
disability rating are met in accordance the provisions of
38 C.F.R. §§ 4.40, 4.45, and 4.59. The veteran has
consistently complained of pain in the affected foot.
Although the rating schedule does not require a separate
rating for pain, the veteran's pain must be considered in
evaluating his service-connected disorder. Spurgeon v.
Brown, 10 Vet. App. 194 (1997). The veteran's complaints are
plausible in light of the nature of the in-service injury.
The VA examination indicated the appellant walked into the
examining room with a limp favoring the left side. This
finding indicates objective evidence of a functional
impairment affecting the left foot. It is therefore
reasonable to assign him a 10 percent disability rating under
38 C.F.R. §§ 4.40 and 4.45 based on functional loss and under
38 C.F.R. § 4.59 on the basis on a healed, but painful,
joint.
It is the determination of the Board that the evidence
supports a 10 percent evaluation for residuals of a left foot
injury based on functional loss. The medical evidence does
not, however, support the contention that the veteran has
symptomatology warranting a disability rating in excess of 10
percent. A disability rating greater than 10 percent can be
granted for a foot disorder only where there is evidence of
moderately severe impairment. As previously noted, there is
no such evidence in this case. The veteran's primary
complaint is pain, especially with use of his left foot, and
that symptom is now being compensated for in accordance with
38 C.F.R. §§ 4.40, 4.45, and 4.59. There are no other
symptoms or objective findings that would warrant a higher
rating.
ORDER
An initial 10 percent evaluation for residuals of a left foot
injury is granted, subject to the applicable regulations
governing the payment of monetary benefits.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) redefined
VA's duty to assist, enhanced its duty to notify a claimant
as to the information and evidence necessary to substantiate
a claim, and eliminated the well-grounded-claim requirement.
See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326 (2003).
Assistance shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2003).
The record includes medical evidence of a hepatitis C with
cirrhosis of the liver. The appellant alleges a private
physician, named in the record, has told him the hepatitis C
and resulting cirrhosis is etiologically connected to a
tattoo he received during his period of active service.
Records available from this physician do not reflect this
opinion, nor is there a VA examination addressing the nature
and etiology of the hepatitis C. In this case, a medical
opinion is necessary to substantiate the claim and is
required by the VCAA.
The appellant should be given the opportunity to submit
additional evidence and argument. VA must ensure it fulfills
its duty to notify the appellant of the evidence necessary to
substantiate his claims. See 38 U.S.C.A. § 5103 (West 2002).
The VA should assist the appellant in these matters prior to
the Board's review. See Bernard v. Brown, 4 Vet. App. 384,
394 (1993). The case is remanded to the RO via the AMC in
Washington, D.C., for the following:
1. The RO must review the claims file
and ensure that all obligations under the
Veterans Claims Assistance Act of 2000
(VCAA) have been satisfied. 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002);
38 C.F.R. § 3.159(b) (2003). See also
Quartuccio v. Principi, 16 Vet. App. 183
(2002).
2. The RO should arrange for a VA
examination to determine the nature and
etiology of the appellant's hepatitis C.
Send the claims folder to the physician
for review; any report written by a
physician should specifically state that
such a review was conducted. After
reviewing the available medical records
and examining the appellant, ask the
examiner to opine - based on review of
the evidence of record, examination of
the appellant, and her or his
professional expertise - on the nature of
the current hepatitis C with cirrhosis,
the date of its onset, and whether the
onset of hepatitis C was more likely than
not (i.e., probability greater than
50 percent), at least as likely as not
(i.e., probability of 50 percent), or
less likely than not (i.e., probability
less than 50 percent) related to (1) the
appellant's service, and specifically to
his receipt of a tattoo, or (2) some
other etiologic cause. A complete
rationale should be given for all
opinions and conclusions expressed.
3. Following any additional development
deemed appropriate, the RO should
readjudicate the claim currently in
appellate status. If a benefit sought is
not granted, the appellant and his
representative should be furnished with a
Supplemental Statement of the Case, to
include all pertinent law and
regulations, and an opportunity to
respond. Thereafter, the case should be
returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matters herein remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
MICHELLE KANE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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